South Africa: Media Freedom, looking backward, looking forward

Last year was a busy year for the media in South Africa. There have again been a number of court decisions that have given the media the breathing space it needs to function in our democracy.

The most important of these was the decision of the Constitutional Court in the application brought by Independent Newspapers, Media 24 and the Mail & Guardian to access the refugee appeal board hearing of Radovan Krejcir. Krejcir, a Czech national is appealing his failed application for asylum in South Africa and the media wished to access Krejcir’s appeal of that decision. Krejcir had by then become the subject of much media attention, and allegations had been published in the media claiming he was linked to various criminal activities in South Africa.

The Refugees Act contained a blanket ban on access to these types of proceedings. The Constitutional Court had no hesitation in rejecting this ban as an unconstitutional infringement of freedom of expression. The Court accepted the media’s argument that a better balance between freedom of expression and the need for confidentiality for the vast majority of asylum seekers was to give the refugee appeal board a discretion to allow access on a case-by-case basis. Parliament was given two years to correct the constitutional defect, but in the interim the board has a discretion to allow access if it is in the public interest to do so (Mail and Guardian Media Ltd v Chipu N.O. [2013] ZACC 32).

The case has important ramifications for access to adjudicatory tribunals: it will now be rare that a tribunal adjudicating a matter of public interest will be permitted by law to do so in secret.

There were also some important cases under the Promotion of Access to Information Act (PAIA). The High Court ruled in the long-running application by the Mail & Guardian to access the report by Justices Sisi Khampepe and Dikgang Moseneke on legal and constitutional issues concerning the 2002 Zimbabwe elections. The majority of the Constitutional Court had remitted the case to the High Court, saying that in the circumstances of the case, the High Court should have taken a “judicial peek” of the report before making a decision. Raulinga J subsequently peeked and ordered that the report should be released, both because none of the presidency’s grounds of refusal could be sustained, and also it was in the public interest for the report to be released (M & G Media Ltd v President of the Republic of South Africa [2013] ZAGPPHC 35). The presidency has appealed the decision to the Supreme Court of Appeal, which will hear the case next year.

In another important PAIA case, the Mail & Guardian Centre for Investigative Journalism (MGCIJ) is seeking access to all the documents concerning procurement and financial implications of the upgrade of President Jacob Zuma’s residence at Nkandla. In an about-turn, after alleging under oath that not one such document could be disclosed because they were all replete with security information, the department of public works disclosed some 12,000 pages. But the MGCIJ pressed on with its case, arguing that the application should be referred to oral evidence because none of the “head office” documents it alleged must exist (which could include documents reflecting meetings between ministers and the President) had been disclosed by the department. The department argued that it had done all it reasonably could to locate relevant documentation. Judgment in this case has been reserved and if granted in favour of the MGCIJ, will illustrate another layer of protection to hold the state accountable in PAIA cases – that decision-makers could be exposed to cross-examination in appropriate cases to justify their access refusals.

On the topic of Nkandla, there were continued attempts by government officials to censor reportage about the scandal. First, the Mail & Guardian was criticised for publishing an interim report of the Public Protector. But the provision of the Public Protector Act that was invoked – even if it applies to the disclosure of an interim report – is in my view unconstitutional, because its overbreadth chills the publication of public interest expression. Secondly, it was argued that the apartheid-era National Key Points Act prohibited photographs of Zuma’s Nkandla residence because it has been declared a national key point. Yet the legislation itself only prohibits photographs of “security measures” at such a key point, and so clearly cannot apply, for instance, to aerial views of the residence, or pictures of features that objectively are not security measures.

All of this leads inevitably to the progress of the Protection of State Information Bill. The Bill was passed by the National Assembly in April but then referred back to parliament by Zuma in September- it seems, to cure some innocuous grammatical and typographical errors. Having made various typographical changes, the National Assembly again passed the Bill in November. And despite premature publication by parliament recently of the Bill in the form of an Act, it still awaits Zuma’s signature.

While the Bill has significantly improved since it was first introduced some five years ago, there remain fundamental problems. For example, the Bill still fails to provide for a meaningful public interest defence and a public domain defence for the possession and disclosure of classified information. It is by no means clear, for instance, that much of the reportage on the Nkandla upgrades – based in part on classified documents – would have been possible under the Bill without journalists and editors facing possible jail sentences. And this would apply both to the media that first broke the story, as well as all repetitions (including on social media).

In 1994, in addressing the International Press Institute Congress in Cape Town, Nelson Mandela spoke of the importance of media freedom in terms no judge has since been able to match:

“[i]t is only such a free press that can temper the appetite of any government to amass power at the expense of the citizen. It is only such a free press that can be the vigilant watchdog of the public interest against the temptation on the part of those who wield it to abuse that power. It is only such a free press that can have the capacity to relentlessly expose excesses and corruption on the part of government, state officials and other institutions that hold power in society”.

As we take stock of some of the legal developments in media freedom in 2013, and look ahead to this year, we should be vigilant in testing restrictions on media freedom against the rationales for that freedom so eloquently articulated by Mandela nearly 20 years ago.